Dennison v. Social Security Administration
Filing
25
OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting 24 Motion for Relief (tjc, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
TABATHA I. DENNISON,
Plaintiff,
vs.
Case No. 11-CV-245-FHM
CAROLYN W. COLVIN,
Acting Commissioner, Social Security
Administration,1
Defendant.
OPINION AND ORDER
The Motion for Relief Pursuant to Fed. R. Civ. P. 60(b)(6) filed by Plaintiff’s counsel,
[Dkt. 24] is before the court for decision. The motion contains a statement that the
Commissioner objects to the motion, but the time for filing a response brief has passed and
Commissioner has not filed any objection.
In McGraw v. Barnhart, 450 F.3d 493, 496 (10th Cir. 2006), the Court ruled that
attorney fees are awardable under 42 U.S.C. § 406(b)(1) when the Social Security
Administration awards disability benefits to a claimant following a remand from the federal
court. In such a circumstance the authority of Fed. R. Civ. P. 60(b)(6) is employed to allow
counsel to seek fees under §406(b)(1) long after the usual fourteen days allotted by Fed.
R. Civ. P. 54(d)(2)(B)(i) for filing a motion for attorney fees has expired. McGraw, 450 F.3d
at 505.
1
Effective February 14, 2013, pursuant to Fed. R . C iv. P. 25(d)(1), C arolyn W . C olvin Acting
C om m issioner of Social Security, is substituted as the defendant in this action. No further action need
be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act,
42 U.S.C . § 405(g).
The court remanded this case to the Commissioner for further administrative action
pursuant to sentence four of 42 U.S.C. § 406(g). On May 28, 2013, the Commissioner
issued a fully favorable decision. Counsel’s motion for relief under Rule 60(b)(6) was filed
less than a month after the issuance of the decision. Counsel represents that, as of the
date of filing the instant motion, the Notice of Award containing the amount of past due
benefits has not been received. Consequently, the amount of the contingent attorney fee
cannot be ascertained. Counsel requests an order allowing the filing of the motion for
406(b) fees within sixty days of receipt of the Notice of Award.
The Court finds that the instant motion was filed within a reasonable time of the
decision awarding benefits and that the request for sixty days from receipt of the Notice of
Award in which to file a motion for fees under §406(b) is reasonable.
The Motion for Relief Pursuant to Fed. R. Civ. P. 60(b)(6) is GRANTED, as follows:
a motion for an attorney fee award under §406(b), together with the required notice to
Plaintiff and statement concerning any objection thereto, may be filed within 60 days of the
Notice of Award.
SO ORDERED this 12th day of July, 2013.
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